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HIGH COURT OF CALCUTTA
DIPANKAR DATTA, J.
Ashoka Dhar - Appellant
Versus
Partha Banerjee - Respondent
C.O. 2762 of 2005
Decided on : Aug 19, 2011
WILL - PROBATE - INSPECTION - INTEREST: Caveatable interest in estate of deceased - Grant of probate - Inspection of will - Entitlement - Conditions.
Fact of the Case:
Applicants, claiming interest in the deceased's estate through a registered deed of sale, sought to inspect a will in a probate proceeding. The trial court allowed the inspection, and the petitioners challenged this order in revision.
Finding of the Court:
The court held that the applicants had a caveatable interest in the estate and were entitled to inspect the will. The court relied on the fact that the applicants had purchased the property in question from the deceased's heir and that the will could potentially affect their rights.
Issues: 1. Whether the applicants had a caveatable interest in the estate of the deceased? 2. Whether the applicants were entitled to inspect the will?
Ratio Decidendi: 1. A caveatable interest is an interest in the estate of the deceased testator which may be affected by the grant of probate of the will of the deceased. 2. A person who has even a slight interest in the estate of the testator is entitled to file a caveat and contest the grant of probate of the will of the testator. 3. The expression "claiming to have any interest in the estate of the deceased" appearing in Section 283(1) of the Indian Succession Act, 1925 is wide enough to include persons having a possibility of an interest and in case his interest is such as is or is likely to have been prejudicially or adversely affected by the grant, a person would be qualified to receive citation.
Final Decision: The court dismissed the revision petition and upheld the trial court's order allowing the applicants to inspect the will.
1. THESE two revisional applications arise out of orders passed by the trial Courts in independent proceedings but have been heard together in pursuance of an order dated July 3, 2008 of the Honble the Chief Justice and, accordingly, shall stand disposed of by this common judgment and order.
2. THE petitioners in both the applications are common. THE first petitioner is the widow of Ashim Kumar Dhar (since deceased) (hereafter Ashim), whereas the second petitioner is the son of the first petitioner, born in her wedlock with Ashim.
Subject matter of challenge in C.O. No. 2762 of 2005 (hereafter the former application) is order no.12 dated July 29, 2005 passed by the learned Chief Judge, City Civil Court in L.A. Case No. 69 of 2004. In C.O. No. 29 of 2008 (hereafter the latter application), order no.142 dated December 18, 2007 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Suit No. 1884 of 1991 is under challenge.
3. THE material facts relevant for decision on the applications are noted first.
4. A certain Nanibala Dhar (since deceased) (hereafter Nanibala) by a will dated December 2, 1965 had bequeathed all her properties to Ashim by appointing him as the sole executor. After the death of Nanibala in 1979, Ashim, as the sole executor, had applied on July 28, 2004 for grant of probate of her will before the learned Chief Judge, City Civil Court at Calcutta, giving rise to Probate Case No.69 of 2004.
During pendency of the said probate case, Ashim passed away on November 9, 2004. The petitioners being the heirs of Ashim, who was the sole beneficiary of the will executed by Nanibala, filed an application before the Court for converting the said probate case into a case for grant of letters of administration. The conversion was duly allowed.
5. IN terms of an order dated 15th March, 2005, a notice was published in the issue dated March 23, 2005 of the Bengali daily Bartaman for general citation regarding the letters of administration case. INterested parties were called upon to lodge objection by 8th April, 2005 failing which the said case would proceed ex parte.
6. CONSEQUENT to publication of the said notice, Dr. Partha Banerjee (hereafter Dr. Partha), Smt. Aparna Banerjee (hereafter Aparna) and Smt. Sanjukta Banerjee (hereafter Sanjukta) filed an application before the trial Court praying for direction upon the petitioners to produce the will executed by Nanibala for inspection and/or to deliver photocopy thereof to them. One other application claiming similar relief was filed by Sri Rajesh Dhar (hereafter Rajesh), claiming himself to be the constituted attorney of one Dr. Ramesh Chandra Dhar (hereafter Dr. Ramesh). Dr. Partha, Aparna, Sanjukta and Rajesh shall hereafter be referred to as the applicants.
In their objection dated 7th April, 2005, Dr. Partha, Aparna and Sanjukta claimed that Nanibala while being absolutely seized and possessed of premises no.79/4G, Raja Naba Krishna Street, Kolkata-700 005 (hereafter the said premises) had created a trust in respect thereof by a registered deed of settlement dated 28th December, 1972, appointing thereby her adopted son Dr. Ramesh as the sole trustee with liberty to sell the said premises; that, by virtue of a registered deed of conveyance dated 31st May, 2004, the said Dr. Ramesh, with the consent of the beneficiaries, sold and transferred all right, title and interest in the said premises to Dr. Partha, Aparna and Sanjukta and put them in possession of the entire first and second floors as also part of ground floor of the said premises for valuable consideration mentioned therein; that on noticing the publication in the Bartaman, Dr. Partha, Aparna and Sanjukta considering themselves to be interested and necessary parties intended to lodge their objections in respect of the alleged will of Nanibala which, according to them, is a fabricated document; that Dr. Ramesh during his tenure as trustee had instituted T.S. No. 1884 of 1991 against hi
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